Can the other party's insurance company total our car if we had a lien on it? 19 Answers as of April 18, 2013

We had an accident and it was the other party’s fault. Their insurance wants to total our car but we have a lien on it?

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The Lucky Law Firm, PLC
The Lucky Law Firm, PLC | Robert Morrison Lucky
Yes, in Louisiana the insurance company can total your vehicle if the repair cost equals or exceeds 75% of the actual cash value of your vehicle just prior to the accident. This is completely the insurance company's call.
Answer Applies to: Louisiana
Replied: 4/18/2013
John Russo | John Russo
So whats your question? Why did you not retain counsel on this matter you are not lawyers cannot hope to handle these types of matters on your own, they have a right to total your vehicle if cost to repair exceeds book value on the vehicle. You have options here but you should retain an attorney especially if there were injuries. I many jurisdictions you have the option on how you want this to go, e.g. they do have the option to total but as stated in many jurisdiction you can demand that the insurance company replace your vehicle with the exact model detail for detail you have that option, e.g. color, milage, condition prior to accident, etc, etc, at least under that case you don't lose since you will just pickup at the same spot you were at prior to the accident, and you just continue to pay, but again you will need someone that knows the law to guide you, and that is not going to happen on these sites.
Answer Applies to: Rhode Island
Replied: 4/17/2013
Lewis B. Kaplan | Lewis B. Kaplan
Is there any chance repairs would not exceed fair market vehicle ? Then vehicle should not be totaled . Otherwise it is a total loss even if lien amount exceeds fair market value .
Answer Applies to: Illinois
Replied: 4/17/2013
Mark Caruso
Mark Caruso | Mark Caruso
The insurance company will pay off the lien and give you the difference IF the amount of the lien is less than the value of the car. The insurance company will give the entire amount to the lienholder IF the amount of the lien is more than the value of the car, and you will still owe the balance of the remaining lien to the lienholder. This is called being "upside down" on the lien.
Answer Applies to: New Mexico
Replied: 4/17/2013
Law Offices of Stanley S. Lopata
Law Offices of Stanley S. Lopata | Stan Lopata
An insurance company need pay you only the Actual Cash Value of your car when it declares the car a total loss! Whatever the lien may be is not important. Only the cash value.
Answer Applies to: California
Replied: 4/17/2013
    Law Office of John G. Galasso | John George Galasso
    Yes; the lien holder would be paid first; If the amount the car is worth is less than the lien, you are responsible for the difference; If you are not at fault in the accident, I would sue the other party; If the other party has no insurance, I would sue your own insurance company under the underinsured motorist section of your policy
    Answer Applies to: Ohio
    Replied: 4/17/2013
    Gates' Law, PLLC | Thomas E. Gates
    The lien owed is your responsibility; the amount you get for your totaled car would go towards paying off the lien. Any remaining balance is your responsibility.
    Answer Applies to: Washington
    Replied: 4/17/2013
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    They can pay you the fair market value of the car. If there is a balance left on the note, then you are responsible for the difference. Hopefully you have gap insurance.
    Answer Applies to: Nevada
    Replied: 4/17/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    The person who destroyed your car only need to give you the market value of it in order to clear their liability. The fact that you have a lien on the car is irrelevant to the calculation.
    Answer Applies to: Michigan
    Replied: 4/17/2013
    Conway Law Pllc.
    Conway Law Pllc. | B. L. Conway
    Yes they can. You are entitled to the NADA Retail Value of the Car in that circumstance. So they pay the lien off and you the rest. If you need help or are injured do not hesitate to call.
    Answer Applies to: Virginia
    Replied: 4/17/2013
    Paul Whitfield and Associates P.A.
    Paul Whitfield and Associates P.A. | Paul L. Whitfield
    You mean someone else has a lien on your car. you owe the bank for it? if your car is totaled you will be paid the fair market value of the car by the liability company. It does not matter whether or how much is owed on your car. you still owe the same amount. If you owe more than the car is worth you are upside down and you have to pay it. the debt is the debt. You owe it. the value of the car is something else. It may or may not be equal to the debt.
    Answer Applies to: North Carolina
    Replied: 4/17/2013
    Mark G. Patricoski, P.C. | Mark G. Patricoski
    YES
    Answer Applies to: Illinois
    Replied: 4/17/2013
    Candiano Law Office
    Candiano Law Office | Charles J. Candiano
    The at fault driver is responsible for paying you the fair market value of your vehicle. Nothing else matters. If the fair market value of the car is $20,000, you will get a check for $20,000. It makes no difference whether you paid cash for the car or whether you owe $30,000 on the car. Nearly every car that is financed is going to be worth less money than is owed on the car during some period of time. That is why whenever you finance a vehicle you are offered something that is called "gap" insurance. If you had gap insurance and the fair market value of your car was $20,000 but you still owed $30,000 and the car was totaled, the at fault driver would pay the $20,000 and your gap insurance would pay the other $10,000. Unfortunately, if you did not purchase gap insurance, in this illustration you would still owe $10,000 and your car would be totaled.
    Answer Applies to: Illinois
    Replied: 4/17/2013
    Gregory S. Shurman, LLC
    Gregory S. Shurman, LLC | Gregory S Shurman
    Yes, they can, if they determine that it would cost more to repair your car than the fair market value of your car. Once they deem your car a total loss, they are obligated only to pay for its fair market value, even if you owe more on it than it is worth. There is insurance against this sort of loss called "gap" insurance.
    Answer Applies to: Georgia
    Replied: 4/17/2013
    Matthew D Kaplan LLC
    Matthew D Kaplan LLC | Matthew D Kaplan
    Yes they can unfortunately.
    Answer Applies to: Oregon
    Replied: 4/17/2013
    David F. Stoddard
    David F. Stoddard | David F. Stoddard
    Yes. To be precise, they are not totaling the car, it is either totaled in the accident or not. The insurance company is responsible for causing any damage the other party caused. If the cost of repairing the car is equal to or exceeds the fair market value (FMV) of the car, then it is totaled. You may have a dispute as to what the fair market value of the car is, and if they are valuing it significantly less than its real value, it is possible it could be repaired for less than the FMV. If you feel strongly enough about this, you can go to court over it. They will pay the funds to the lien holder. Any funds that exceed the FMV will go to you. If the FMV is less than the lien, you will still owe the difference to the lienholder.
    Answer Applies to: South Carolina
    Replied: 4/17/2013
    James E. Hasser, Jr. P.C.
    James E. Hasser, Jr. P.C. | Jim Hasser
    Whether or not your car is "totaled" is a question of fact which would ultimately be up to a judge or jury in court. The law of damages in Alabama is that you are entitled to the cost of repair or the value of the vehicle, minus salvage, whichever is less. The fact there is a lien on the car is only relevant in that they would be entitled to the proceeds up to the amount of their lien. I suspect the problem, although you don't say it, is that the lien exceeds the value. Value is a matter of opinion. Everyone has one. You are entitled to your own opinion. It may be that your opinion as to the value is greater than the insurance company's. Kelly Blue Book and other services are just guidelines and not the law. Again, you are entitled to your own opinion. Now, sometimes, you just can't get enough to cover the lien. If that's the case, you've got a couple options. The first is to see if the lienholder will reduce the lien and take what the insurance will pay as payment in full. Alternatively, you might be able to make up for the difference on the personal injury claim.
    Answer Applies to: Alabama
    Replied: 4/17/2013
    Law Offices of Ronald A. Steinberg & Associates | Ronald A. Steinberg, BA, MA, JD
    Typically, people have colission coverage for their own vehicles, and they claim against their own policies. I suggest that you get proof from the newspaper as to what your make, model and year of auto is selling for, and argue with any company (yours or the other guy's) as to the value of your car. If you owe more than the car is worth, that is YOUR problem, not theirs. That is why people buy "gap" insurance, to protect themselves from a situation like you are in.
    Answer Applies to: Michigan
    Replied: 4/17/2013
    Kelaher Law Offices, P.A.
    Kelaher Law Offices, P.A. | James P Kelaher
    The insurance company has to pay off the lien, and then if there is any money left, you get it. If you're upside down in the car, then you 've got to come up with the money.
    Answer Applies to: Florida
    Replied: 4/17/2013
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